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Semantics and Legal Interpretation (Further Thoughts)

Published online by Cambridge University Press:  09 June 2015

David O. Brink
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In my article “Legal Theory, Legal Interpretation, and Judicial Review” I tried to do three main things. First, I tried to establish a link between familiar issues within legal theory about the nature and determinacy of the law and familiar issues within constitutional theory about the scope and record of judicial review via their common dependency on assumptions about the nature of legal interpretation. Second, I argued that a proper theory of interpretation has at least two important components: a theory of the semantics of legal terms and a theory about how best to characterize the purposes or intentions underlying legal provisions. Third, I sketched my own account of these two components of legal interpretation and then explored their implications for these familiar disputes within legal theory and constitutional theory. In particular, the semantic claims that I outlined require us (a) to distinguish between the meaning or reference of legal terms and people’s beliefs about the extension of those terms and (b) to rely on theoretical considerations, of various kinds, in ascertaining the extension of general terms occurring in legal provisions. The account of underlying purpose that I sketched requires legal interpreters to identify the purpose of a legal provision with the abstract values that the framers of that provision sought to implement, rather than with the specific activities that they sought to regulate, and then to determine the extension of these values (i.e., the activities that these provisions, properly understood, do regulate) by appeal to theoretical considerations about the nature of these principles and policies. These interpretive claims, I argued, tend to vindicate a belief in the determinacy of the law in hard cases and the style, if not the content, of the Court’s exercise of judicial review in cases concerning individual rights, against worries that in these cases it has exceeded the scope of legitimate judicial review.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 2 , Issue 2 , July 1989 , pp. 181 - 191
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1989

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References

I would like to thank Alan Sidelle for helpful comments on an earlier draft.

1. Brink, David O. “Legal Theory, Legal Interpretation, and Judicial Review” (1988),17 Philosophy & Public Affairs 105.Parenthetical references in the test are to pages in this article.Google Scholar

2. Compare this sketch with Saul, Kripke, Naming and Necessity (Cambridge, MA: Harvard University Press, 1980)Google Scholar and Hilary, Putnam, “The Meaning of ‘Meaning’”reprinted in Mind, Language, and Reality: Philosophical Papers,Vol.2 (New York: Cambridge University Press, 1975).Google Scholar

3. See, e.g., Elliot, Sober “Realism and Independence” (1982),17 16 Nous 369 and my Moral Realism and the Foundations of Ethics (New York: Cambridge University Press,1989), pp.14–19.Google Scholar

4. See Putnam, “The Meaning of ’Meaning”, supra note 2 at 242–4.

5. Of course, I don’t care about the word ’natural‘. If one likes, one can insist on the narrow reading of ’natural kind‘; my claim will then be that TDR and my own semantic constraints apply to social and legal kind terms as well as natural kind terms.

6. Even this, I think, is not required either by TDR or by my own semantic constraints [(a) and (b)]. Since there may be different important explanatory features underlying the use of kind terms in different communities (e.g. the biological community and the “fishing” community), there may be reason to recognize different dialects corresponding to the use of these terms by different communities. If so, then we couldn’t decide what the extension of ’fish‘ is independently of specifying which dialect the term occurred in. As I say, I think these claims are perfectly compatible with my claims in the article and TDR, but since they do muddy the waters a bit, it may be best to ignore them for the present purposes.

7. The thoughts in this section were prompted by some of the reactions to the original article by my MITcolleagues Dick Cartwright, Paul Hoffman, and Judy Thomson.

8. Cf. Hart, H.L.A. The Concept of Law (New York: Oxford University Press, 1961) [hereafter CL], esp. pp 121–35,200. Hart’s discussion of open-texture does not explicitly mention disagreement; he talks more about uncertainty and lack of guidance (e.g. CL: 123,124,127). But it nonetheless seems right to see serious disagreement as signalling open-texture. First, we would expect uncertainty when there arecompeting arguments about the meaning of a provision, and Hart himself often speaks of the discretionary resolution of open-texture as concerned to address competing interests (CL: 126, 128). Second, I rely on Hart’s belief that the rule-skeptics among the Legal Realists were right insofar as they recognized the limited determinacy of legal rules (e.g. CL: 135), and I take the rule-skeptics to be (over) impressed by the phenomena of legal disagreement.Google Scholar

9. It may be worth noting that, as far as I know, no one —including Dworkin and Sartorius — has made this claim.

10. Proponents of the standard view who also accept that Dworkin calls the “strict doctrine of precedent,” according to which judges are obliged to follow past decisions of certain courts even when they believe those decisions to be interpretively mistaken, may think that the Supreme Court has, in some instances, resolved these indeterminancies in constitutional law by having exercised judicial discretion. (Cf. Dworkin, Ronald, Law’s Empire (Cambridge, MA, Harvard University Press, 1986), 24–6. For example, they might hold that Mapp v. Ohio (367 U.S. 643 (1961)) resolved the indeterminacy that there was concerning whether due process requires the exclusionary rule. This need not affect my point. First, I think that the strict doctrine of precedent is least plausible as applied to the Court itself in important constitutional matters. Whereas, in some civil matters it is arguably more important to adopt some rule than it is to adopt any particular rule (think of rules of the road), this is presumably not true in weighty constitutional matters; here it is arguably more important to get the rule right than it is to adhere to the same rule. Second, the strict doctrine of precedent, if defensible, is itself a principle of the legal system and figures in, among other things, constitutional interpretation; therefore, its relevance to constitutional interpretation could be acknowledged without supposing that it resolves the indeterminacy in the particular constitutional provisions (e.g. due process and cruel and unusual punishment clauses) themselves. Finally, even if we accept the strict doctrine of precedent and suppose that precedents can resolve indeterminancies in constitutional provisions, we could focus on the indeterminacy in the constitutional provisions prior to their resolution by the Court's exercise of judicial legislation.Google Scholar

11. It’s true that Hart sometimes recognizes these extra-semantic aspects of interpretation; but (a) it’s not clear that he thinks they’re ever sufficient to resolve semantic indeterminacy, and (b) in any case, he seems to think of these aspects of judicial.